Why is it important to have a will?

As an advocate for comprehensive and reliable estate planning, I recently held a successful seminar for
residents and expats in Malaysia. The discussion was centred around why thoroughly planning an estate is so important. Two of the most important questions we answered were: What is a will?And why is it important to have a will?

The Wills Act 1959 defines a will as a declaration that intends to have legal effect of the intentions of a testator, with respect to his property or other matters he desires to be carried into effect after his death (the Wills Act does not apply to Muslims or those living in East Malaysia).

What happens if I don’t have a will?

Depending on your status, the Distribution Act 1958 will divide your assets between your next of kin, which is generally your spouse and children. But there are exceptions to the rule. As a married couple with parents still alive, your parents end up with up to 25% share of the matrimonial home if one of you passes on. And as an unmarried couple, the government doesn’t recognise your relationship at all. Only legitimate heirs and spouses stand to gain under the Distribution Act. That means children out of wedlock, partners from common law marriages, old friends, dedicated carers and charities close to your heart will receive nothing. So now you can begin to see why it’s so important to have a will.

Given the choice, it’s likely that you’d select someone with integrity to execute your will, who you trust to respect your wishes. But if you don’t have one, your next of kin will have to propose who should be the administrator of your estate. This could lead to confusion, or worse, family squabbles over who should be in charge if no one can reach an agreement.

There are so many more implications of passing on without a will – known as intestacy. Without a will, you won’t be able to decide who will look after your children. Nor will you be able to specify your funeral arrangements. Cover these things with comprehensive estate planning services.

If I’m an expat, why is it important to have a will?

Expats may have property or assets based in their country of origin. If you don’t have a will in either country, things get complicated. If you’re an expat in Malaysia and own a house in England, for example, you could lose up to 40% of that property’s value if you don’t have a will or tax plan in the UK. And then the burden of UK inheritance tax falls on your children.

Don’t have a will in Malaysia? Then you need an inheritance tax receipt and a UK Grant of Probate before the Malaysian courts even begin to process a Probate in Malaysia. Any Malaysian assets are potentially tied up. Having a will in Malaysia not only unlocks these assets, it releases some funds to help your family pay for inheritance tax in the UK.

It’s far safer to have a safety net in both countries to protect the value of your estate.

So let’s sum up. Why is it important to have a will?

There are many reasons why you should take the time to plan your estate.

Save family left behind additional heartache, time and money

Decide how your assets are divided

Choose who will administer the contents of the will

Pick who looks after your children

Consider where your money goes, whether to family, friends or charity

Retain your estate’s value and your legacy continues

With an experienced advisor to guide you through the process, you can start to answer key questions. What are my assets? Where is my paperwork to prove ownership? What are my liabilities? And that way, you know the whole process will run smoothly.

Author: Sam Choong

Sam Choong is a lawyer practising in Penang, Malaysia. His areas of practice include estate planning, wills and UK inheritance tax for expats residing or seeking to retire in Malaysia.

May I congratulate you for thinking ahead! Sounds like a straightforward scenario but sometimes things may not be what they seem. I am assuming you are talking about the Malaysian context. If you do not have a will, depending on whether your parents are still alive and whether you have any other family members, such as a sister or other brothers, the Distribution Act may pass part of the property to other members of the family. Therefore to make sure your brother gets the full share in the house & to avoid delay and unnecessary costs, I would advise a will to be prepared. Not exactly sure what you mean by a “declaration”. A will is in a way a declaration in writing, signed by the testator (creator of the will) and witnessed by two persons who are not the beneficiary. Hope that helps!